KBS Reference Desk: Intermittent FMLA for ARDS

Q:        A school district employee has requested intermittent leave to care for his child’s serious health condition pursuant to the Family and Medical Leave Act (“FMLA” or “the Act”). The district previously approved his request for leave to attend the child’s medical appointments, but the employee now seeks leave to attend his child’s ARD Committee meetings as well. Does the FMLA cover his request? 

A:        Yes, most likely. According to recent guidance from the Department of Labor, an employee’s need to attend an ARD Committee meeting for a child with a serious health condition may constitute a qualifying event entitling the employee to    intermittent FMLA leave.

As you know, the FMLA guarantees “eligible employees” certain rights and protections for qualifying events. An employee is eligible under the Act if:

·      the school district employs at least 50 individuals within a 75-mile radius;

·      the individual seeking leave has been a district employee for at least 12 months; and

·      the employee has worked 1,250 hours in the 12 months immediately before the leave. 

If FMLA eligible, an employee is entitled to a maximum twelve weeks of job-protected, unpaid leave per year for certain qualifying events. One such qualifying event is when intermittent leave is medically necessary for the employee to care for a family member’s serious health condition, which is defined as an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a healthcare provider. See 29 U.S.C. § 2611(11). An employee’s need to “care” for the family-member includes both physical and psychological care, as well as arranging for changes in that care—even if outside of a traditional medical setting. See 29 U.S.C. § 2612(b)(1); 29 C.F.R. §§ 825.124, 825.202.

 In a recent Opinion Letter from the Department of Labor (“DOL”), the DOL explained that intermittent FMLA leave may be available for an eligible employee who needs to attend an ARD meeting when his or her child has a serious health condition. See WHD Opinion Letter FMLA2019-2-A, 119 LRP 30178 (2019). Because the ARD committee members “discussed and planned for the child’s educational, medical, and specialized needs,” the DOL opined that the employee’s care for his child at the ARD amounted to a qualifying event for FMLA purposes. In particular, because attendance at the ARD was essential to providing “appropriate physical or psychological care” for the child, the employee’s need to care for his child’s serious health condition in that setting was a qualifying reason to take intermittent FMLA leave.  

            As a reminder, employees must communicate with the district regarding FMLA requests and make reasonable efforts to schedule periods of intermittent leave in a manner that meets both the district and the employee’s needs to the greatest extent practicable, and  a request for FMLA leave should always be evaluated on a case-by-case basis. For additional or specific questions regarding FMLA, please contact your local school attorney.

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